People v. Gordon

SIMS, J.

I concur in the majority opinion. I write separately to address in greater detail defendant’s contention that the prosecutor had a sua sponte duty to elect, at the outset of trial, the act relied upon by the prosecution to obtain a conviction on each count pleaded in the information.

Where the information charges an offense, and where the evidence at trial shows more than one act of the kind charged within the timeframe pleaded in the information, either the election of a specific act by the prosecution, *866 or an instruction by the court selecting the first act upon which evidence was introduced, will prevent a nonunanimous verdict, because the jury is told to determine guilt or innocence upon the single act selected. (See, e.g., People v. Metheney (1984) 154 Cal.App.3d 555, 563 [ 201 Cal.Rptr. 281 ]; People v. Epps (1981) 122 Cal.App.3d 691, 701-702 [ 176 Cal.Rptr. 332 ].) I agree with the majority that a jury instruction in the form of CALJIC No. 17.01 equally cures any problems with a nonunanimous verdict, because the jury is told they must all agree on the same act. To that extent, I also agree with People v. Dunnahoo (1984) 152 Cal.App.3d 561 , at page 570 [ 199 Cal.Rptr. 796 ].

However, the doctrine of prosecutorial election was not devised simply to avoid nonunanimous verdicts. As Dunnahoo itself acknowledges (id., at pp. 570-571), the doctrine was originally designed in part to insure that a defendant receives fair notice of the charges against him so he can prepare a defense. The doctrine of prosecutorial election for purposes of fair notice is traceable to two vintage cases decided only months apart: People v. Castro (1901) 133 Cal. 11 [ 65 P. 13 ] and People v. Williams (1901) 133 Cal. 165 [ 65 P. 323 ], Williams is the more illuminating of the decisions. It arose out of a prosecution for rape of a 13-year-old girl. (P. 167.) The doctrine of prosecutorial election can be addressed intelligently only by knowing what Williams was all about. To that end, I quote from the case at some length:

“But one other matter requires notice at our hands. That arises from an instruction given by the court, to the effect that if the jury found that defendant had had sexual intercourse with the prosecutrix at any time within three years before the finding of the indictment, she being under sixteen years of age, etc., they must find him guilty. The prosecutrix testified that she lived with the defendant for a period of four months, and on nearly every day during that time, and sometimes five or six times a day, they had sexual intercourse with each other. In addition to this sweeping general assertion, many alleged acts were specifically described, with circumstances of time, etc. Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them. The jury were not even told that they must all agree that some specifically described act had been performed. A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And *867 how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried? Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse. That it was wrong, was held in the recent case of People v. Castro, [supra, 133 Cal. 11 ].

“. . . A defendant on trial upon a criminal indictment has a right to demand that the charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense. Practically, that is not done in these few anomalous cases, where any number of separate offenses may be proven, although the defendant is being tried for the commission of only one. Two cases upon this point are cited, in each of which a rule is declared, but the rules differ. In People v. Flaherty, 162 N.Y. 540 , it is said: ‘The indictment alleges acts constituting but one crime, and while the mistake as to the date will not prevent the prosecution from proving the crime charged in the indictment, the indictment will be deemed to cover the offense attempted to be proved nearest in point of time to the date of the indictment.’ In State v. Hilberg, 61 Pac. Rep. 215 (Utah), it was said, after noticing that the prosecution could have proved any one act committed, ‘When evidence was introduced, tending directly to the proof of one act, and for the purpose of securing a conviction upon it, from that moment that particular act became the act charged.’ This rule is uncertain, and unfair to the defendant, because of the qualifying clause, ‘for the purpose of securing a conviction upon it. ’ I think the prosecuting officer, when he commences the trial of a case of this class, where he is at liberty to prove one of several different offenses under the indictment, should at least as early as the commencement of the trial, inform the defense upon proof of what specific offense he intends to rely, and if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and unless that precise offense is proven, the defendant is entitled to an acquittal. Even this would leave a defendant in such cases at a disadvantge [sic], but he ought not be tried under less favorable circumstances.” (People v. Williams, supra, 133 Cal. at pp. 167-169, italics in original.)

Williams tenders a virtual bouillabaisse of fair notice concerns. I think it crucial at the outset to extract from this soup some ingredients that serve no purpose other than confusion. Thus, for example, Williams mentions “the general evidence of continuous crime” and “a charge . . . indefinite as to circumstance of time or place,” and then asks rhetorically, “And how could he defend when he was not informed as to what particular offense, *868 out of hundreds testified to by the prosecutrix, he was to be tried?” (P. 168.)

This allusion to the vagueness of the evidence can easily lead to the conclusion a defendant has a right to notice of the specific time or place an offense occurred. That is obviously not the law. The prosecution has a duty to plead that an offense was committed within the period of an applicable statute of limitations. (See People v. Chadd (1981) 28 Cal.3d 739, 756-757 [170 Cal.Rptr. 798 , 621 P.2d 837]; People v. Witt (1975) 53 Cal.App.3d 154, 162 [ 125 Cal.Rptr. 653 ].) Beyond that, whatever may be the prosecution’s duty to provide notice of a charged offense to a defendant, the prosecution clearly has no duty to provide more explicit notice than human nature and science permit. A contrary conclusion would lead to the absurd result that those defendants who are most clever about concealing the precise time or place of their crimes, and who are therefore the most dangerous, would avoid prosecution.

Thus, for example, if the dismembered and decomposed body of defendant’s wife is exhumed from its basement grave, and if the authorities are able to place the time of death only within a span of a year or two, the defendant cannot avoid prosecution by contending the vagueness of the charge may well prohibit him from pursuing an alibi defense based on the theory he was out of town during certain days or weeks during the years when his wife met her demise. Indeed, I am unaware of any American case in which a contention of this sort has been advanced. Similarly, in cases of sexual child abuse, a defendant has no right to notice of the time or place of a sexual act that is more explicit than the recollection of the child is capable of providing. 1

A second concern of Williams is that, regardless of the vagueness of the time or place of criminal acts shown by the evidence, the defendant must receive reasonable advance notice of the acts to be relied upon by the prosecution to prove the ofiense. This concern makes sense. Unless a defendant knows the prosecution will try to hold him criminally responsible by proving he committed certain acts, the defendant cannot know whether he has a defense to any of those acts.

In my view, modern procedures in criminal cases have eroded if not eliminated Williams’ concerns about fair notice in the indictment process. When Williams was decided in 1901, a defendant who was indicted was not *869 entitled to a preliminary hearing. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587 [ 150 Cal.Rptr. 435 , 586 P.2d 916 ].) A defendant apparently received, in addition to the indictment itself, a transcript of testimony taken before the grand jury. (Former Pen. Code, § 925; Stats. 1897, ch. 142, § 1, p. 204.) However, Williams makes no mention of any such transcript. It is clear Williams assumed that the only pretrial notice available to the defendant in the circumstances was the language of the indictment. “A defendant on trial upon a criminal indictment,” said the Williams court, “has a right to demand that the charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense.” (Williams, supra, at pp. 168-169 .) Even assuming arguendo a defendant got a transcript of grand jury testimony in 1901, that transcript was unlikely to provide a defendant with much information about the circumstances of an offense because, “The prosecuting attorney is typically in complete control of the total process in the grand jury room . . . .” (Hawkins v. Superior Court, supra, 22 Cal.3d at p. 589.)

In Hawkins , our Supreme Court held, on equal protection grounds, that a defendant must be afforded a postindictment preliminary hearing, including rights of cross-examination by defense counsel. (Id., at p. 593.) Itemizing the virtues of such a preliminary hearing, the court said, “[S]uch a hearing will assuredly provide the defense with valuable information about the case against the accused, enhancing its ability to evaluate the desirability of entering a plea or to prepare for trial. ” (Id., at p. 588, italics added.)

It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. Nothing more need be said in support of this proposition than to point to several well-established rules of law. The first is that, under “simplified” California pleading, the circumstances of the offense need not be pleaded. (See generally Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, §§ 186-192, pp. 175-182.) “‘Section 952 . . ., which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended [in 1927], declares that it shall be sufficient if it be “in any words sufficient to give the accused notice of the offense of which he is accused.” There, in a nutshell, is stated the principle of our present simplified form of pleading a criminal offense—the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded. ’ ” (People v. Marshall (1957) 48 Cal.2d 394, 399, fn. 5 [ 309 P.2d 456 ], quoting People v. Beesly (1931) 119 Cal.App. 82, 85-86 [ 6 P.2d 114 ], followed in *870 People v. Murtishaw (1981) 29 Cal.3d 733, 751, fn. 11 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ]; see also Pen. Code, § 959; People v. Jordan (1971) 19 Cal.App.3d 362, 369 [ 97 Cal.Rptr. 570 ].)

Another relevant rule is that an information cannot charge offenses not shown by the evidence at the preliminary examination. (See Jones v. Superior Court (1971) 4 Cal.3d 660, 664-668 [ 94 Cal.Rptr. 289 , 483 P.2d 1241 ].)

Other rules illustrate the facility with which an information may be amended. Thus, “Penal Code section 1009 permits an amendment to an information to add another offense shown by the evidence at the preliminary hearing. (People v. Hall (1979) 95 Cal.App.3d 299, 314 [ 157 Cal.Rptr. 107 ]; People v. Spencer (1972) 22 Cal.App.3d 786, 799 [ 99 Cal.Rptr. 681 ]; Patterson v. Municipal Court (1971) 17 CaI.App.3d 84, 88 [ 94 Cal.Rptr. 449 ].) This has been held not to violate a defendant’s constitutional rights. (People v. Tallman (1945) 27 Cal.2d 209, 213 [ 163 P.2d 857 ].) An amendment to the information may be made as late as the close of trial if no prejudice is shown. (People v. Witt (1975) 53 Cal.App.3d 154, 165 [ 125 Cal.Rptr. 653 ].) Whether or not to allow an amendment is within the trial court’s discretion, and its ruling will not be reversed absent an abuse of discretion. (Ibid.; People v. Flowers (1971) 14 Cal.App.3d 1017, 1020 [ 92 Cal.Rptr. 647 ].)” (People v. Villagren (1980) 106 Cal.App.3d 720, 724 [ 165 Cal.Rptr. 470 ].) 2

These rules make it clear that an information plays a limited but important role; it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.

In light of the notice function played by the preliminary hearing transcript, a prosecutorial election is unnecessary to advise defendant of the criminal acts he must defend against. When Williams asks “how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prosecutrix, he was to be tried?” (People v. Williams, supra, 133 Cal. at p. 168), the modern answer is that, at a minimum, a defendant must be prepared to defend against all offenses of the *871 kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information. 3

Despite its arguable anachronism, Williams remains good law. (See People v. Diedrich (1982) 31 Cal.3d 263, 281 [ 182 Cal.Rptr. 354 , 643 P.2d 971 ].) It is not for this court to abolish the doctrine of prosecutorial election. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) Nonetheless, Williams is silent on the issue tendered here, i.e., whether the prosecutor must elect in each case (and/or whether the court sua sponte must force an election), or whether an election by the prosecution is required only when requested by the defendant.

I believe the better rule is to require an election only in the event of a defendant’s request. 4 Because the preliminary hearing transcript puts a defendant on notice, I agree with the majority that multiple acts described therein are all “charged offenses” within a single count of an information provided the evidence at the preliminary hearing shows the acts meet the definition of the charged offense and were committed within the timeframe alleged in the information. (Maj. opn., ante, p. 859, fn. 21.) Since the various acts are all charged offenses, they may be proved at trial without concern for limitations on proof of noncharged offenses recently summarized in People v. Tassell (1984) 36 Cal.3d 77 , at pages 83-89 [ 201 Cal.Rptr. 567 , 679 P.2d 1 ], However, once the prosecutor elects a single act as the charged offense, the other acts suddenly become noncharged offenses subject to Tassell’s rules of exclusion from evidence.

I suggest that, as a practical matter, the effect of a rule requiring a mandatory election would simply be that prosecutors would routinely charge, as a separate count in the original complaint, each criminal act expected to be shown by the evidence at the preliminary hearing in order to avoid Tassell problems. The information would then plead, as separate counts, all acts sustained by the magistrate. The ironic net result would be an unfortunate limitation on prosecutorial charging discretion.

Thus, for example, we recently pointed out that the Penal Code’s prohibitions on sexual conduct with minors apply to “a broad spectrum of con *872 duct, age groups, and relationships” including “strangers, fathers, stepfathers, and neighbors . . . .” (People v. Cicero (1984) 157 Cal.App.3d 465, 479 [ 204 Cal.Rptr. 582 ].) “Thus, a lewd act itself can range from a mere touching [citation] to oral copulation. [Citation.]” (Ibid.)

I think it unwise to promulgate a rule which, in its practical application, would encourage prosecutors to abandon their charging discretion and to seek a conviction for each act committed by a defendant regardless of circumstances of culpability. In its practical effect, such a rule would mean that, in cases where a child testifies an adult lewdly touched the child “every day” during a period of months or years (as is not uncommon in cases reviewed by this court), a defendant could be convicted of hundreds of counts of violation of Penal Code section 288. While this level of culpability may well be appropriate in some cases, I should prefer to leave prosecutors with practical discretion to determine, in the first instance, which ones they are. As I hope is clear, I would require the prosecutor to elect a specific act as the charged offense only upon a defendant’s request. In my view, neither Castro nor Williams compels an election without request. 5 Since no request was made in the instant case, there was no error.

I am frankly uncertain how People v. Dunnahoo, supra, resolved the election problem. It is not clear to me whether Dunnahoo suggests (a) that a defendant must request an election in all cases; or (b) that a defendant must request an election except when defendant proffers a defense of alibi or mistaken identity, in which event an election is mandatory; or (c) that an election, with or without request by a defendant, is available only where such defenses are proffered.

My view is that, because of notice provided by the preliminary hearing transcript, an election is not required by due process and is therefore not required to be made sua sponte in any case, regardless of defenses. However, assuming Williams and Castro require a trial court to honor a request for an election, I fail to see why a defendant should have to tender alibi or mistaken identity defenses to force an election. If the election doctrine has any vitality at all (and we must assume it does), it could serve to focus the jury’s attention on a single act. Theoretically, the prosecutor’s election would allow the defendant to pursue defenses to the elected act that might *873 not apply to other acts shown by the evidence. A defendant may have a variety of defenses to that act other than alibi or mistaken identity. 6 So long as the election doctrine is viable, I think the rule should be that if a defendant wants the prosecutor to elect, defendant may request an election, and an election should be compelled, regardless of defenses.

I emphasize that the argument at this point is largely theoretical. In the real world, a request for an election by the prosecutor will often be greeted with a cross-motion by the prosecutor to amend the information to charge additional counts. But whether, and in what circumstances, a defendant may wish to run that risk is hard to ascertain in the abstract. Suffice it to say that, in the absence of higher authority to the contrary, I see no reason to require a sua sponte prosecutorial election. At the same time, I see no reason to limit defendant’s request for an election to cases in which he pursues alibi or mistaken identity defenses.

However, as the majority correctly conclude in part I of their opinion, the vagueness of proof of the time of commission of a criminal act may result in a failure of the prosecution to prove beyond a reasonable doubt that the act occurred within the period of the statute of limitations.

A new offense must arise out of the transaction which was the basis for the commitment on a related offense. (People v. Jones, supra, 4 Cal.3d at p. 665.)

I say “at a minimum” because a defendant must also be prepared to defend against an amendment to the information that charges offenses other than those charged in the original information, provided evidence in the preliminary hearing transcript shows the new offenses were committed and were transactionally related to the original offense. (See Jones v. Superior Court, supra, 4 Cal.3d at pp. 664-665.)

In People v. Jordan, supra, 19 Cal.App.3d at page 371 , the court assumed an election was available upon demand of a defendant.

For similar reasons, I would conclude a trial court has a duty only upon defendant’s request to instruct the jury that the first act upon which evidence is introduced is the charged act. Such an instruction is unnecessary to avoid a nonunanimous verdict provided CALJIC No. 17.01 is given. I also note that if a defendant is not given reasonable notice in the information of the acts charged, defendant can demur to the information. (See People v. Jordan, supra, 19 Cal.App.3d at p. 371 .) Once again, however, the demurrer is a weapon that must be fired by the defendant. Consequently, defense counsel can choose whether to run the risk of facing additional counts by demurring.

Consent, for example. Of course, since a defendant has no right to make the prosecutor select any given act, the prosecutor may well select an act not vulnerable to the proffered defenses.